Category: church discipline

INTERNET ANNOUNCEMENTS OF INVESTIGATIONS OF CLERGY

Once completely shrouded behind church tradition if not actual walls, the results of church investigations into their own clergy are now routinely posted on the internet.  Some of the investigations must be understood in the context of Canon Law and not just the language used in the disclosures on the internet.

The case of In Re Diocese of Lubbock, Slip Op. (Tex. 2021) reviewed the posting of lists of clergy the church alleged from its own internal investigation were credibly accused of sexual abuse with a “minor.”  However, in the denomination in question, Canon Law held the word “minor” included vulnerable adults, too.  The Plaintiff alleged he was listed even though the sexual misconduct of which he was accused did not involve a person underage but rather an allegedly “vulnerable adult,” in this instance mentally ill or incapacitated.  The Plaintiff complained he was defamed by the failure to make this distinction clear.  Further, the Plaintiff claimed posting the list on the internet was a publication that took the alleged defamation outside of the protection of the Ecclesiastical Abstention Doctrine of the First Amendment.  The Texas Supreme Court explicitly held that any church investigation into clergy was inherently and necessarily ecclesiastical and that publication on the internet did not obviate the doctrine.  The Court held that Canon Law terminology, the conduct and publication of the investigation under commands from the church hierarchy, and plaintiff’s status as clergy made the matter inextricable from ecclesiastical inquires that could not be made by a Court.  The trial court was ordered to dismiss the case.

The Court, and no court has done so, did not require that due process be provided to the accused including the right to be heard by church leadership.  Likewise, the quality of the investigation, or proof thereof, was not required.  The larger denominations have employed retired law enforcement officers and experienced lawyers to conduct and review the internal investigations.  The high-risk action was publishing the results.  While no churches would accept that risk in prior generations, churches in this generation believe they simply have no choice but to achieve transparency.

CHURCH DISCIPLINARY PROCEEDINGS AS TORTS

While church disciplinary proceedings will generally be beyond judicial review because of the Ecclesiastical Abstention Doctrine based on the First Amendment, the bright line of yesteryear has blurred.  The point at which the conduct of a church disciplinary hearing becomes a tort, a wrongful act, because of its harshness may be elusive to determine.

In Williams v Kingdom Hall of Jehovah’s Witnesses, 2021 UT 18 (Utah 2021), a church disciplinary hearing was held to determine whether the member brought before the hearing was guilty of “porneia.”  The member brought to hearing was fourteen years of age at the time she may have engaged in a sexual encounter with another member.  The age of the other member was not in the opinion.  However, there was an audio recording of the sexual encounter.  Who recorded the sexual event was not disclosed.  The Court characterized the sexual encounter as “rape” but did not explain if that was because of her age or because the sexual encounter was somehow violent.  The hearing board interrogated the member and then played the recording stopping it frequently to ask questions of the member.  The member “voluntarily” attended the hearing with her parents.  The plaintiff member alleged the hearing was a traumatic intentional infliction of emotional distress and she sued.  The trial court dismissed the case but the Utah Supreme Court reversed, ordering the trial court to develop standards based on “our history, tradition, and precedent to identify core Establishment Clause principles that may be applied to the facts of the case.”  The Supreme Court of Utah did not hold that the Ecclesiastical Abstention Doctrine would not apply but that factual and legal inquiry was required to determine if it did under the “standard” quoted.

In many states, the hearing board might have been subject to prosecution for failing to report child sexual abuse of a minor of this age.  Indeed, if the audio recording was rather a video recording, child pornography charges might have been appropriate.  While there may be some religious orders that feel compelled by their beliefs to do so, a church that conducts a church disciplinary hearing regarding a minor, even with parental consent, may be treading near or into tort territory.  Church leaders that conduct such hearings in many states risk a lot more than money if the child abuse mandatory reporting statute does not contain a safe harbor.